Calvin Barry is a Toronto-based criminal lawyer with over 16 years experience as a senior crown attorney at Calvin Barry Professional Corporation - Criminal Lawyers. Calvin Barry Lawyer Toronto has practiced in the area of Criminal Law and Regulatory Offenses since October of 2004, accruing over 30 years experience in criminal law.

Friday, April 27, 2012

Naveen Polapady’s incident reminds some people of Lucky Moose shopkeeper, David Chen who became a symbol of property-defence rights in 2009 after being charged for tying up a shoplifter. Chen was acquitted and later visited by prime minister Stephen Harper. Aaron Lynett/National Post files

Megan O'Toole, National Post

Wednesday, Apr. 25, 2012

Naveen Polapady’s story struck all the right notes to inspire a collective sense of public outrage.

The owner of Maroli restaurant, an Indian eatery on Toronto’s bustling Bloor Street West, said he was defending his property when he hurled masala spice powder into the face of a man he believed was trying to break into his car.

So when news emerged this month that police had charged Mr. Polapady — since dubbed the “spiceman” — with assault in the August 2011 incident, a furor ensued. Pundits drew parallels with the case of David Chen, a Chinatown grocer in Toronto whose arrest for tying up a repeat shoplifter prompted Bill C-26, a proposed piece of legislation that aims to expand citizen’s arrest powers. The Prime Minister’s Office even called Mr. Polapady to express support.

But the story now appears more complex, especially after police arrested the man who broke into Mr. Polapady’s car — and it proved to not be the man who was spiced.

“Some of our own 14 Division officers have recently fallen victim to inaccurate reporting wherein the alleged events of ongoing investigations are suspiciously one-sided,” Superintendent Mario Di Tommaso fumed in an open letter to the community condemning the “tabloid-style reporting” surrounding the Polapady case, which returns to court Thursday.
“I would ask that our residents and communities be mindful and even critical when reading these articles, and to remember that there are always two sides to every story, and that sometimes police are not in a position to justify and defend their actions due to the ongoing judicial process.”
Supt. Di Tommaso, who expanded on his concerns at a meeting this month between 14 Division officers and members of the community, pointed out there was no evidence to incriminate the man whom Mr. Polapady confronted on Aug. 21, 2011.
The story began that morning around 8, in a parking lot behind Maroli. As Mr. Polapady tells it, he saw a man lurking in the parking lot whom he believed had broken into his car days earlier, stealing a cellphone and other electronics. Prosecutors are expected to allege Mr. Polapady was lying in wait for the man, an accusation he has publicly denied.
A scuffle ensued, caught on Mr. Polapady’s security camera. Footage of the altercation aired on CBC shows Mr. Polapady wielding a broomstick as he exchanges blows with a man wearing a backpack and baseball cap. Mr. Polapady says he also threw masala spice into the man’s face. Eventually the pair break apart and the man in the baseball cap hops on a bicycle and rides away.
Police say Mr. Polapady inflicted significant damage, sending the man to hospital with head injuries requiring six stitches.
Mr. Polapady subsequently contacted police, who questioned the man in hospital but released him after finding no evidence to lay charges. That night, just after 7, police instead charged Mr. Polapady with administering a noxious substance, assault with a weapon and assault causing bodily harm.
Months later, after Mr. Polapady opted to share his story with the news media, police made another arrest on April 12. Jason Mitchell, 40, of no fixed address, has since pleaded guilty to theft and possession of property obtained by crime in the Polapady case. Mitchell was not the man Mr. Polapady scuffled with on that date.

Police are concerned, however, that this significant development has been largely overlooked as the public continues to rally behind the spiceman.

“The only person who has spoken about this case is a man who has been charged with three criminal offences, and what has been noteworthy is that virtually everyone has taken what he said at face value,” Toronto police spokesman Mark Pugash noted. “I think there are significant dangers in doing that.”

‘I’ve got support from all over Canada and abroad, Norway and Australia. It’s moral support’

Mr. Polapady, who gave several media interviews when the story of his arrest broke, says he will not discuss the case until the court process concludes. Contacted by the Post, he declined to comment on whether he believed there were two thieves targeting his property — the one police arrested and the one Mr. Polapady fought — or whether the second man was simply the victim of a mistaken identity.

“It’s been really stressful for my family, for my business,” Mr. Polapady said in a brief interview Wednesday. “I’ve got support from all over Canada and abroad, Norway and Australia. It’s moral support … it’s helpful.”

Mr. Polapady returns to court Thursday to continue ongoing negotiations with the Crown, during which the defence will request a stay of proceedings.

But if the matter ultimately goes to trial, defence lawyer Calvin Barry said, “he’s going to be asserting self-defence, defence of property, defence of his business and his home.”

Mr. Barry lauded the potential of Bill C-26, which would simplify the rules on defence of persons and property, and allow citizens to arrest someone they find committing a criminal offence in relation to their property within a reasonable time.

“That would be helpful for everyone: For the prosecutors, for the police, for accused persons, for the public, for juries, judges,” Mr. Barry said. “[The existing] provisions in the Criminal Code are very outdated and somewhat archaic.”

But York University criminal procedure professor James Stribopoulos says cases such as Mr. Polapady’s underscore the bill’s risks, particularly when there is a temporal disconnect between when an offence is committed and when a citizen attempts to intervene.

Monday, April 9, 2012

Police lay assault charges against man who claims he was defending his business

Naveen Polapady's restaurant is located on Bloor Street West, near Euclid Avenue. (CBC)

A Toronto restaurant owner is facing assault charges after fighting with a man he says has repeatedly tried to steal from his restaurant in a case that raises issues about the rights of property owners.

Naveen Polapady owns Maroli, an Indian restaurant located at 630 Bloor St. W. near Euclid Avenue.

Polapady, who lives above the restaurant with his wife and two children, told CBC News that he caught the same man trying to break into his home and business on numerous occasions in a string of events that began last summer.

Polapady said he would often spot the man lurking in an alley located at the back of the restaurant.

Polapady said he reported the attempted thefts to police, but they made no arrests. In response, Polapady upgraded his locks and installed surveillance cameras.

The situation came to a boiling point last August when Polapady decided to confront the man. On Aug. 17, Polapady's van was broken into and a GPS unit stolen. The theft was caught on his security cameras. Four days later, Polapady spotted the man in the alley behind his restaurant and confronted him.

Polapady armed himself with a broom handle and the two men tussled in a confrontation captured by a surveillance camera.

Police allege that Polapady was hiding in the bushes with the intention of ambushing the alleged thief on that day. Polapady denies it was an ambush and says he saw the man trying to break into one of the vehicles on his property and was trying to stop him.

During the tussle, Polapady struck the man with the broom handle and — during a portion of the struggle that happened off-camera — threw spices into the man's face.

'I had to run for my life'

The camera captures the two men trading blows. Polapady eventually flees from the larger man, who is then seen riding away on his bike in the opposite direction.

"He was physically very strong," Polapady told CBC News. "I had to run for my life. He chased me and threatened to kill me."

Polapady then followed the man in his car and called police. The man was arrested and questioned by police but the only charges police laid were against Polapady for assault causing bodily harm, assault with a weapon and administering a noxious substance, a reference to the spices.

Police have confirmed to CBC News that the man they arrested and questioned after the incident has multiple theft convictions.

Const. Wendy Drummond said police investigated but didn't find enough evidence to support charges against the man who struggled with Polapady.

"We responded early in the morning to reports of a break and enter," said Drummond. "We made an arrest a very short time thereafter. We went over quite a bit of information and evidence … but we found there wasn't enough evidence to lay those charges [of breaking and entering]."

Naveen Polapady's restaurant is located on Bloor Street West, near Euclid Avenue. (CBC)Drummond said anyone who finds themselves in Polapady's situation should contact police before taking matters into their own hands.

While the law allows people to defend themselves and their property against crimes, she said they must do so within certain limits.

"There is a reasonable use of force that can be used," said Drummond. "And what is deemed to be reasonable is something that the courts will determine."

Self-protection laws unclear

But determining exactly how much force the law allows a citizen to use in defending themselves or their property is often a grey area.

Last year, Prime Minister Stephen Harper announced new legislation aimed at expanding legal protection for people making a citizen's arrest or defending themselves or their property against a criminal act.

The legislation came in response to a well-publicized 2009 incident in which a store owner in Toronto's Chinatown chased down and tied up a man who had stolen from his store.

The shopkeeper, David Chen, was originally charged with assault and forcible confinement before a judge threw out the charges.

Last February, with an election threat looming, the Conservatives introduced Bill C-60, which would give shop owners more flexibility to make citizens' arrests. It became known as the Lucky Moose bill, named after Chen's shop.

The bill died when Parliament was dissolved for last May’s federal election. The bill, now renamed as C-26, is currently in second reading.

Lawyer Calvin Barry, a former Crown prosecutor, is representing Polapady. He said new legislation is needed to clarify the rights of people and property owners forced to defend themselves or their property against criminals.

"Even the judiciary is having problems trying to weave themselves through this complicated area of the law of excessive force, self-defence, peaceable possession of property, how much force can you use," he said. "There's a lot of variables. Anything that can help make the law more understandable has to be applauded. I think we're getting there. Hopefully we can get it right so people know what they can and can't do."

Polapady, meanwhile, says he is left with a stack of legal bills. Worse, he now feels he's at the mercy of thieves.

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About Me

In his private practice Mr. Barry has defended high profile fraud cases, drug related matters, assault, theft, manslaughter and murder charges.
Mr. Barry has been particularly successful in defending a large number of drinking and driving charges, such as impaired driving, over 80 mg of alcohol in the blood and failure to blow.
Mr. Barry is currently a member of the Criminal Lawyers Association. He is a past director of the board of the Ontario Crown Attorney’s Association (1990-2000), and , in particular, worked as Treasurer of the Association (1994-95) and as a member of the Association’s Finance Committee (1996-97). He has also served as a member of the Toronto Mayor’s Task Force on Drugs (1995-98); a director of the Board of Directors of Variety Village; and a director of the Osgoode Hall Alumni Association.